The constitution of the United States specifically invests the President with the power “to grant reprieves and pardons for offences against the United States, except in cases of impeachment.”
This power is not among the most awesome powers of the president; it is, at best the most benevolent.
Although one may encounter numerous references to the exercise of the prerogative of mercy in Mosaic Law, Greek Law and Roman Law, it is best documented in the early history of England.
This week, Monday, a federal judge in New York dismissed the fraud case against Stephen K. Bannon, the conservative provocateur and ex-adviser to former president Donald Trump, ending months of litigation over how the court system should handle his pardon while related criminal cases remain unresolved.
Citing examples of other cases being dismissed following a presidential reprieve, US District Judge Analisa Torres, granted Bannon’s application, saying in a seven-page ruling that Trump’s pardon was valid and that “dismissal of the indictment is the proper course.”
Bannon had been charged with fraud last year, along with three others, in what prosecutors described as a massive fundraising scam targeting the donors of a private campaign to build a wall along the US-Mexican border.
Bannon was accused of pocketing more $1 million from his involvement with “We Build the Wall” while falsely representing to the sponsors that all the money went into building the wall.
In her decision, the judge pointed to past judicial discussions on pardons and what they imply about individuals who receive one. Quoting from a New Jersey court that, in 1833, found that “pardon implies guilt”, she said, “If there be no guilt, there is no ground for forgiveness. A party is acquitted on the ground of innocence; he is pardoned through favour.”
Trump pardoned Bannon in late January as one of his last acts as president. Bannon’s attorney Robert Costello said that “The judge clearly reached the right result. An unconditional pardon should always result in the dismissal of the indictment. Finality should result in finality.”
However, the US attorney’s office argued that a presidential pardon does not require that the case be dismissed outright, only that the prosecution of the case be aborted.
Prosecutors told the judge in April that “there is no need for action beyond terminating Bannon from the docket because the presidential pardon has been docketed in this case and speaks for itself.”
In what must appear to be a travesty of justice, Bannon’s three co-accused were not issued pardons and are preparing to stand trial in federal court. All have denied any wrong-doing.
The constitution of the United States specifically invests the President with the power “to grant reprieves and pardons for offences against the United States, except in cases of impeachment.” This power is not among the most awesome powers of the president; it is, at best the most benevolent.
Although one may encounter numerous references to the exercise of the prerogative of mercy in Mosaic Law, Greek Law and Roman Law, it is best documented in the early history of England.
The prerogative of mercy found its way into the statutory rolls of the Anglo-Saxon monarchs during the reign of King Ine of Wessex (668-725 AD). Section 6 of the laws provided “If any one fight in the King’s house, let him be liable in all his property, and be it in the King’s doom whether he shall or shall not have life.”
This theme which later was to appear in the laws of Alfred (871-901), Ethelred (978-1016), and Cnut (1017-1035), probably was fashioned more to facilitate the king’s safety than to spare him the sight of insolent behaviour.
It is in the laws of Henry I that the first mention of compensation in return for a pardon appears. The annals of the royal prerogative for mercy are replete with suggestions of the power’s propensity for abuse.
The benefits of the power were rarely available to those condemned to death in error. In other respects, it was disproportionately overemployed. The power to pardon was especially useful when peace was never in long duration.
The pardoning power of England was applied to the American colonies, and subsequently incorporated into the US Constitution.
Despite a burst of pardons and commutations in his last hours of office, Donald Trump used his executive clemency powers less frequently than any other president since the turn of the 20th century. Trump granted 237 acts of clemency during his four years in office, including 143 pardons and 94 commutations.
His predecessor, Barack Obama, granted clemency 1,927 times over the course of his eight years in office, the highest of any president going back to Harry Truman. Obama’s total was skewed heavily towards commutations (1,715) instead of pardons (212).
While rare overall, Trump’s use of presidential clemency caused controversy because of the nature of his pardons and commutations, many recipients having personal or political connections to the president. He often ignored formal channels through which requests for clemency were processed.
The full extent of a president’s power to pardon has not been exhaustively resolved. Pardons have been used for presumptive cases, such as when President Gerald Ford pardoned Richard Nixon, who had not, as yet, been charged with any offence, over any possible crimes connected with the Watergate scandal, but the Supreme Court has never considered the legal effectiveness of such pardons.
There is also disagreement on how the pardon power applies to cases involving obstructions of an impeachment. Of course, the question of whether a president has the power to pardon himself has still not been tackled in court because so far, no president has done so. There has also been speculation about the president giving secret pardons.
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